[Marxism] Greenwald Salon: Does Obama seek USSup.Ct. for peventive detention? (Don't claim to know.)

["Fred Feldman" <ffeldman@xxxxxxxxxxxxxxxx>]

Full: http/www.salon.com/opinion/greenwald/2009/05/25/obama/
Monday May 25, 2009 08:26 EDT
Backlash grows against Obama's preventive detention proposal
(excerpt)

It's a bit difficult to claim that what Obama is proposing is nothing new,
nothing out of the ordinary, given that his own White House Counsel just
last February told The New Yorker's Jane Mayer that it would be "hard to
imagine Barack Obama as the first President of the United States to
introduce a preventive-detention law."  

As acknowledged by two of the leading proponents of preventive detention --
Bush OLC lawyer Jack Goldsmith and Obama's Deputy Solicitor General Neal
Katyal -- the real purpose of preventive detention (contrary to what some
are arguing) is not to classify and treat all detainees as "prisoners of
war" (since some of them, by Obama's own description, will get trials in
real courts and others in military commissions), but rather, to give "the
government an overwhelming incentive to use trials only when it is certain
to win convictions and long sentences, and to place the rest in whatever
detention system it creates" (h/t EJ).  

I defy anyone to re-read that description of what this "preventive
detention" system does and then claim that what is being described is a
"justice system" in any meaningful sense of that term.

* * * * * 

On Friday, I spoke with the ACLU's Ben Wizner about these issues and the
transcript is here.

 

UPDATE:  In this morning's New York Times
[http://www.nytimes.com/2009/05/25/us/politics/25power.html],...Charlie
Savage examines Obama's choice to replace David Souter on the Supreme Court
in the context of executive power, noting that while Obama has rejected some
of the most extreme Bush legal theories, his embrace of many of the same
policies -- denial of habeas rights at Bagram, revised military commissions,
preventive detention -- places Obama on what Savage called "his own
collision course with the court."

As Savage notes, Souter was a very reliable vote in favor of placing some
limits on Bush's executive power assertions (which were almost invariably
5-4 decisions against Bush).  Thus, replacing Souter with a justice who is
more receptive to broad claims of executive power could shift the balance of
the court on these questions.  

Savage examines the record, which reveals that one leading candidate --
Seventh Circuit Court of Appeals Judge Diane Wood -- has some very
impressive past statements that demonstrate her recognition of the need to
impose real limits on executive power, including what would appear to be her
opposition to Obama's just-announced plan for military commissions ("'the
principle is well established that extraordinary tribunals, such as military
commissions, are not authorized to operate if the normal courts are open for
business,' [Wood] wrote").  By contrast, Obama's Solicitor General -- Elena
Kagan -- has, as Law Professor Darren Hutchinson also documents, repeatedly
endorsed broad theories of executive power of the type that would fit in
nicely with Bush's OLC circa 2004.

That Obama may be motivated to seek out a Justice with much more permissive
views of executive power than those to which the Bush-41-appointed Souter
subscribed -- all in order to ensure that the Court approves of his
"counter-terrorism" policies -- simply underscores the irony of what Obama
is doing in this area.

 

UPDATE II:  When he introduced his proposal for preventive detention during
Thursday's speech, Obama said he wants to "work with Congress to develop an
appropriate legal regime, that our efforts are consistent with all values
and our Constitution."  But as CQ reports today (h/t EJ), key members of his
own party are baffled by how any such preventive detention system could ever
possibly be consistent with the Constitution:

President Obama may not get a lot of help from Congress in designing the
detention system he says he wants: something that can hold people who
haven't committed any terrorists acts, but probably will, in a way that's
consistent with the Constitution.

So far, congressional Democrats have no idea how he can do that -- which
pretty much leaves him with the burden of figuring it out himself. . . .

The problem is, the congressional Democrats he'd consult on the issue don't
seem to have any suggestions for Obama on how to detain potentially
dangerous people without violating the Constitution.

"I don't know," said House Judiciary Chairman John Conyers Jr. of Michigan,
who would be likely to be involved in any discussions between Obama and
Congress. . . .

Democratic Rep. Jim McGovern of Massachusetts gave Obama "credit for taking
the issue on in a straightforward way," but said only that "I'd be
interested to see what he's proposing" on a constitutional system of
preventive detention. "Maybe he's a smarter man than I," McGovern said, but
"I can't think of a system that fits within the Constitution" . . . .

"That was one of the troubling moments in his speech, which was generally
very strong on the rule of law," said Sarah Mendelson, director of the Human
Rights and Security Program at the Center for Strategic and International
Studies. "Either you have committed a crime, and we're prosecuting you, or
you haven't. I know there's no silver bullet, believe me, but I think he's
got some mixed messages."

If incarcerating people with no charges and no trial indefinitely -- while
making clear that the imprisonment will likely last decades -- isn't
unconstitutional, then it's hard to imagine what would be.

 




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